In Virginia Courts, what devices can the Police or a Prosecutor use to prove the speed of a car for Reckless Driving?
In Virginia, if you are traveling at greater than 19 mph over the speed limit, OR you are going over 80 mph, you can be charged with the Class 1 Misdemeanor crime of Reckless Driving by Speed (VA Code §46.2-862). This article discusses what Police and/or Prosecutors will have to prove in order to convict you. If you hire an experienced Reckless Driving Lawyer Fairfax Virginia, then your lawyer will know how to fight this. If you are going in on your own and want to take on the Prosecutor yourself, here are some tips based upon my 30+ years of defending people charged with Reckless Driving by Speed in Northern Virginia Courts.
Reckless by Speed is a “per se” offense. This means that there is no intent involved. You were either going greater than 19 mph over the limit or in excess of 80 mph, or you were not. Excuses like, “I did not know I was going that fast,” or “I was just keeping up with traffic…” do not work in cases like this. (This is why many people don’t do these cases on their own and instead, hire a Reckless Driving Lawyer Fairfax Virginia.).
Remember that a Prosecutor must prove every element of the offense beyond a reasonable doubt. Since there is just one element in Reckless Driving by Speed, all the Prosecutor has to prove is your speed. The Virginia Code gives the Prosecutor three easy ways (using a device, which is the subject of this article) and one hard way (a pace of your vehicle which is subject of another article). The Virginia Code section 46.2-882 says that if the Police use three types of devices to detect speed (laser, radar or microcomputer) the reading on that machine will prove the speed as long as the device has been properly certified and calibrated. Here is the important part of 46.2-882:
In any court or legal proceeding in which any question arises about the calibration or accuracy of any laser speed determination device, radar, or microcomputer device as described in this section used to determine the speed of any motor vehicle, a certificate, or a true copy thereof, showing the calibration or accuracy of (i) the speedometer of any vehicle, (ii) any tuning fork employed in calibrating or testing the radar or other speed determination device or (iii) any other method employed in calibrating or testing any laser speed determination device, and when and by whom the calibration was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such device shall be valid for longer than six months.
Here is a tip that an experienced Reckless Driving Lawyer Fairfax Virginia will know: The device used must be on a list approved by the Division of Purchases and Supply and that Police Chiefs and/or Sheriffs have to determine that the devices selected meet or exceed the standards set by the Division of Purchases and Supply.
The Division of Purchases and Supply, pursuant to § 2.2-1112, shall determine the proper equipment used to determine the speed of motor vehicles and shall advise the respective law-enforcement officials of the same. Police chiefs and sheriffs shall ensure that all such equipment and devices purchased on or after July 1, 1986, meet or exceed the standards established by the Division.
Thus, if you are trying the case, or if you hire an experienced Reckless Driving Lawyer Fairfax Virginia, make the Prosecutor prove these extra requirements set forth in the Virginia Code.
A Judge should require the Prosecutor to present information that the machine used was determined to be “proper equipment” by the Division of Purchases and Supply, AND that the device was determined to meet the standards by the Chief of Police or the Sheriff. Just repeat the words of 46.2-882.
One other tip, while you are not required to prove anything, you may want to get a copy of the regulations on what devices are approved by the Division of Purchases and Supply, and find a copy of the determination by the Chief of Police and/or Sheriff. If the machine presented at trial is not on this list, then the reading of that machine should be ruled inadmissible. As such, you or your experienced Reckless Driving Lawyer Fairfax Virginia should make a motion to suppress this reading and throw out the certificate. Contact Dave Albo – Attorney for more information.